Why Congress Is Effectively Powerless To Stop The Iran Deal (and Why The Answer is Not the Iran Review Act)

Andrew McCarthy is once again blaming the poor Iran Nuclear Agreement Review Act for Congress’s inability to stop the President from implementing the Iran deal. McCarthy is not the only one doing so. This position is not just wrong, but dangerous, since it deflects attention from the true causes of the predicament Congress finds itself in.

A second reason for Congress’s relative lack of power is the longstanding but growing practice of President’s entering into legally-non-binding “political” agreements. Such agreements are not treaties and thus need not be approved by 2/3 of the Senate, and are not congressional-executive agreements that require bicameralism and presentment. They aren’t even “pure” executive agreements—at least not ones legally binding under international law. Critics might protest the growing practice of political agreements on the ground that even though they’re not binding under international law they can have a profound practical impact on U.S. foreign policy. And so perhaps Congress or the Senate should use its political and legal tools to better regulate political agreements. But the practice of presidents making political agreements is not new.

Nor is President Obama’s plan to go to the United Nations Security Council to bless the Iran Deal and lift international sanctions an untoward use of presidential power. Presidents have exercised the discretion under Article II of the Constitution to speak and vote for the United States in the United Nations, with enormous consequences, since the 1940s. Congress has expressly approved this practice. (See especially 22 USC 287 and 22 USC 287a.) And as John Bellinger has noted, the draft Security Council Resolution has been “carefully crafted by Administration lawyers to avoid imposing binding legal obligations on the United States before Congress considers” the Iran Deal.

The President’s team cleverly stitched together the President’s authority to lift domestic sanctions, his authority to make political agreements, and his authority to vote for the United States in the Security Council, in order to make sure the Iran Deal would stick unless supermajorities of Congress reject it. Don’t blame the President for doing something legally sketchy when he is exercising clear authorities. And don’t blame the Iran Review Act for seeking to delay the President from exercising some of these authorities. If Congress doesn’t like the position it is in now, it should be more careful when it gives the President discretion to implement (and waive) its sanctions. (And if Andrew McCarthy doesn’t like the position Congress is in, he should not have advocated for presidential flexibility in implementing Iran sanctions.) I doubt Congress will be more careful in the future, since it typically doesn’t like (and cannot organize itself to exercise) the responsibility as an equal constitutional partner in the conduct of U.S. foreign relations.

P.S.: Senator Cardin is wrong to say that the President seeking U.N. Security Council approval for the Iran Deal before the 60-day review period under the Iran Review Act expires is inconsistent with the Iran Review Act. That Act in no way stops the President from using his pre-existing authorities to vote in the United Nations. I’m also surprised that Senator Cardin said: “Quite frankly, we didn’t focus on how they would implement the U.N. international aspects of this. I think we sort of assumed we would have this 60-day period without that action.” That was a bad assumption, especially since the Administration did not hide the ball about going to the United Nations regarding international (as opposed to U.S.) sanctions, regardless of what Congress did in the Iran Review Act.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.